T  TI E 


M  E  R  R  Y  M  A 


i  HABEAS  (^ORl^US  CASE. 


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Tiir.  ri,MMi;i:iu\(i<  i\  I'li.i.  wi' 


X, 


oriMON    or   i'llIKF    JISTK  K    TA\KY.«ej 


THE  UNITED  STATES  GOVERNMENT  A  MILITARY  DESPOTISM. 


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THE  FlOmns  COLLECTIOI^  ^A\Vt3T  "        ^^^ 


MEERYMAN  HABEAS  COEPUS  CASE. 


#6  3y 


[from  f/;c  Baltimore  Excliange.  May  2Sth,  18G1.] 

Yesterday  morning  the  United  States  Court  room  was  filled  with  a 
dense  crowd,  anxious  to  hear  the  resiilt  of  tlie  writ  of  habeas  coiyus 
issued  by  Chief  Justice  Taney  in  the  case  of  John  Merryuian,  Esq., 
who  was  arrested  on  tlie  nioruinj*'  of  the  25th  inst.  When  it  was 
found  that  General  Cadwallader  refused  to  obey  the  writ,  a  icelingof 
great  indignation  prevailed.  Tho  prompt  and  decided  action  of  the 
venerable  Ciii(;f-  Magistrate  of  the  nation  was  received  with  undis- 
guised approbation.     The  following  is  a  report  of  tho  proceedings  : 

The  IbMov.'ing  petition  was  filed  in  this  case  by  Geo.  M.  Gill  ait.l 
Geo.  H.  Williams,  Esqs.,  counsel  for  Mr.  Merrymau  : 

To  THE  Hon.  Kogeb  B.  Taney,  ,« 

Chief  Justice  of  the  Supreme  Coiirt : 

The  petition  of  John  Merrynian,  of  Baltimorfi  pounty,  and  State  of 
Maryland,  respectfully  shows  that,  being  at  home  in  his  own  domicil, 
lie  was,  about  the  hour  of  two  o'clock,  A.  M.,  on  the  25th  of  May,  A. 
D.  1801,  aroused  from  his  bed  by  an  armed  ibrce,  pretending  to  act 
under  military  orders,  from  some  person  to  your  petitioner  unknown  ; 
that  he  was  by  the  said  armed  force  deprived  of  his  liberty  by  being 
taken  into  custody  and  removed:  from  his  said  house  to  Fort  McHenry, 
near  to  the  city  of  Baltinioic,  and  in  the  District  aforesaid,  and  where 
your  petitioner  now  is  in  cl(»se  custody. 

That  he  has  been  so  imprisoned  without  any  process  or  color  of 
law  whatsoever,  and  that  none  such  is  pretended  by  those  who  are 
thus  detaining  him,  and  that  no  warrant  from  any  court,  magistrate 
or  other  person  having  legal  authority  to  issue  the  same,  exists  to 
justify  such  arrest,  but  to  the  contrary,  the  san'ie  as  above  is  stated 
hath  been  done  without  color  of  law,  and  in  violation  of  the  Constitu- 
tion and  laws  of  the  United  States,  of  which  he  was  a  citizen. 

That  since  his  arrest  he  has  been  informed  that  by  some  order  pur- 
porting to  come  from  one  General  Keim,  of  Pennsylvania,  to  tho  peti- 
tioner unknown,  directing  the  arrest  of  some  captain  in  Baltimore 
county,  of  which  company  the  petitioner  never  was,  and  is  not  cap- 
tain, was  the  pretended  ground,  as  he  believes,  on  which  he  is  now- 
detained. 

That  the  person  now  so  detaining  him  and  holding  him  at  said  fort 
is  Brigadier-General  George  Cadwallader,  njilitarj'  commander  of  said 
fort,  professing  to  act  in  the  premises  under  or  by  order  of  the  United 
States. 

The  petitioner,  therefore,  prays  that  the  writ  of  habeas  ccrpiis  may 
issue,  to  be  directed  to  the  said  George  Cadwallader,  commanding 
him  to  produce  yonx  petitioner  before  you,  Judge  as  aforesaid,  with  the 
cause,  if  any,  for  his  arrest  and  detention,  to  the  end  that  your  peti- 
tioner be  discharged  and  restored  to  liberty,  and  is  in  duty  bound^ 
etc.  JOnN  MERRYMzVN. 

Fort  McIlENRy,  May  25,  1861. 


Pd0761. 


2  PROCEEDIKGS    IN   THE 

This  petition  was  duly  sworn  to  by  Geo.  H.  Williams,  Esq.,  one  of 
the  Counsel  before  the  United  States  Commissioner,  and  affidavit  was- 
also  made  by  him  that  he  had  applied  to  General  Cadwallader  for  per- 
mission to  see  the  written  papers,  by  virtue  of  which  said  Merrymaii 
was  detain(!d  in  cnstod}^,  and  to  make  copies  thereof,  which  had  been- 
refused  him  by  the  said  General  Cadwallader.  These  were  laid 
before  the  Court,  whereupon  his  Honor  Gliief  Justice  Taney  passed 
an  order  directing  "that  the  writ  of  habeas  c&rpws  issue  in  this  case 
as  prayed,"  and  that  the  same  be  directed  to  General  George  Cad- 
wallader. 

The  writ  was  accordi-ngly  issued  by  the  Clerk  of  the  Court,  as- 
follows  : 

The  United  States  of  America,      ] 
Department  of  Maryland,  to  wit  :    )    ■ 

To  General  George  Cadwallader,  Greeting: 

You  are  hereby  commanded  to  be  and  appear  before  the  Hon.  Roger 
B.  Taney,  Chief  Justice  of  the  Supreme  Court  of  the  United  States, 
at  the  United  States  Court  room,  in  the  Masonic  Hall,  in  the  cit}'  of 
Baltimore,  on  Tuesday,  the  2tth  day  of  May,  1861,  at  eleven  o'clock 
in  the  morning,  and  that  you  have  with  you  the  body  of  John  Merry- 
man,  of  Baltimore  county,  and  now  in  your  custody,  and  that  you 
certify  and  make  known  the  day  and  cause  of  the  capture  and  deten- 
tion of  the  said  John  Merryman  ;  and  that  you  then  and  there  do 
submit  to,  and  receive  whatsoever  the  said  Court  shall  determine 
lupon  concerning  you,  on  their  behalf,  according  to  law,  and  have  you- 
then and  there  this  writ. 

Witness,  the  Hon.  Roger  B.  Taney,  Chief  Justice  of  the  Supreme 
Court,  the  fourth  Monday  in  May,  in  the  year  of  our  Lord,  1861. 

THOMAS  SPICER, 

Issued,  26th  May,  1861.  Clerk  Circuit  Court. 

The  Chief  Justice  appeard  in  Court  at  the  hour  specified,  and  di- 
rected the  Marshal  to  make  his  return  in  the  case.  The  Marstial  re- 
plied that  the  writ  had  been  served,  but  as  yet  there  was  no  return 
prepared.  The  Clerk  was  directed  to  prepare  it.  While  he  was  com- 
plying with  this  order,  Col.  Lee,  Aid-de-Camp  of  Gen.  Cadwallader, 
appeared  in  court,  about  fifteen  minutes  after  the  commencement  of 
the  proceedings.  He  stated  that,  in  the  absence  of  General  Cadwal- 
lader, who  was  unavoidably  detained  by  pressing  engagements,  he 
was  directed  to  read  to  thecourt  the  communication  which  he  helu- 
in  his  hand.     He  then  proceeded  to  read  as  follows  : 

Headquarters  Dep't  of  Annapolis,  \ 
■  Fort  McHenry,  May  25,  1861.      j 

To  the  Hon.  Roger  B.  Taney, 

Cliicf  Justice  of  the  Supreme  Court  of  the  United  States,  Baltimore,  Md. : 

Sir  : — The  undersigned,  to  whom  the  annexed  writ  of  this  date* 
signed  by  Thomas  Spicer,  Clerk  of  the  Supreme  Court  of  the  Unite^^. 
States,  is  directed,  most  respectfully  states-— 


MERRYJIAK   HABEAS    CORPUS    CASE,  S" 

'jPTiat  the  arrest  of  Mr.  John  Mcrrj'man,  in'  the  said  writ  named, 
-tas  not  made  with  the  knowlcdj^-o  or  by  his  order  or  diroction,  but 
was  made  by  Col  Samuel  Yohe,  acting  under  tlie  orders  of  Maj.  Geu. 
W.  H.  Keim,  both  of  said  officers  being  in  the  military  service  of 
the  United  States,  but  not  within  the  limits  of  his  command. 

The  prisoner  was  brought  to  this  post  on  the  20th  instant  by 
Adjutant  James  Wittimore  and  Lieutenant  Wm.  II.  Abel,  by  order  of 
Col.  Yohe,  and  is  charged  with  various*  acts  of  treason,  and  with  be- 
ing publicly  associated  witli,  and  holding  a  commission  as  Lieutenant 
in  a  company  having  in  their  possession  arms  belonging  to  the 
United  States,  and  avowing  his  purpose  of  armed  hostilities  against 
the  Government. 

He  is  also  informed  that  it  can  be  clearly  established  that  the 
prisoner  has  made  often  and  unreserved  declarations  of  his  associa- 
tion with  this  organized  foice,  as  being  in  avovired  hostility  to  the 
(rovernment,  and  in  readiness  to  Co-operate  with  those  engaged  iu 
the  present  rebellion  against  the  Government  of  the  United 
States. 

He  has  further  to  inform  you  that  he  is  duly  authorized  by  the 
President  of  the  United  States,  in  such  cases  to  suspend  the  writ 
«>f  habeas  corpus,  for  the  public  safety.  This  is  a  high  and  delicate 
trust,  and  it  has  been  enjoined  upon  him  that  it  should  be  executed 
with  judgment  and  discretion,  but  he  is  nevertheless  also  instructed 
that,  in  times  of  civil  stJrife,  errors,  if  any,  should  be  on  the  side  of 
safety  to  the  country. 

He  most  respectfully  submits  to  your  consideration  that  those 
who  should  co-operate  in  the  present  trying  and  painful  position  in 
which  our  countrj'^  is  placed,  should  not,  by  reasons  of  any  unnec- 
essary want  of  confidence  in  each  other,  increase  our  embarrassments. 
He,  therefore,  respectfully  requests  that  you  will  postpone  further 
action  upon  the  case  until  he  can  receive  instructions  from  the  Pres- 
ident of  the  United  States,  when  you  shall  hear  further  from  him. 

I  have  the  honor  to  be,  with  high  respect, 
Your  obedient  servant, 

GEO.  CADWALLADER,  ^ 
Brevet  Major-General,  United  States  Army  Commanding. 

On  finishing  the  reading  of  the  reply  of  General  Cadwallader,  Col. 
liCe  was  preparing  to  leave  the  Court,  when  the  following  interrog- 
atories were  put  to  him  by  the  Chief  Justice  : 

Chief  Justice — Have  you  brought  with  you  the  body  of  John  Mer- 
ry man  ? 

Col.  Lee — I  have  no  instructions  except  to  deliver  this  response  to 
the  Court. 

Chief  Justice — The  commanding  officer  then  declines  to  obey  the 
writ  ? 

Col.  Lee — After  making  that  communication,  my  duty  is  ended, 
and  I  have  no  further  power.     [Rising  and  retiring.] 

Chief  Justice — The  Court  orders  an  attachment  to  issue  against 
George  Cadwallader  for  disobedience  to  the  high  writ  of  the  Court,. 
I'eturnable  at  12  o'clock  to-mi)rrow. 


P60761 


PR0CEEDIN'G3    IN    THI 


Subscqnenlly  tlic  Chief  Justice  wrote  and  deliveved  to  the  Clerk 
Uie  follovvinp;  order  : 

Ordered,  Tiiat  an  attachment  forthwith  issue  against  General 
Georg'c  Cadwallader  for  a  contempt  of  refu^sinf^-  to  produce  tlie  body 
of  Jolin  Merrynian,  accordinj^  to  the  cointnand  of  the  writ  of  hnbeaa 
t'orpus  returnable  and  returned  before  me  to-day,  andthat  said  attach- 
ment be  returned  before  me  at  12  o'clock  to-morrow,  at  the  room  of 
the  Circuit  Court.  « 

Monday,  May  27,  1861.  EOGER  B.  TANEY. 


[^From  the  Baltimore  Exchange,  May  29</(.] 
GEN.  CADWALLADER  REFUSES  TO  RECOGNIZE  THE  ATTACHMENT. 

The  attachment  issued  on  Monday  last,  by  Chief  Ju.stico  Tanc}', 
against  Crjneral  George  Cadwallader,  for  refusing  to  obey  the  writ 
of  habeas  corpus  in  the  case  of  John  Merryman,  Esq.,  was  made 
returnable  yesterday  at  12  o'clock.  At  an, early  hour  of  the  day,  the 
U.  S.  Circuit  Court  building  was  beseiged  by  an  immense  crowd. 
About  twelve  o'clock  the  venerable  Chief  Justice  made  'lis  appear- 
ance in  the  court  room.  Ujjon  taking  liis  scat,  he  asked  lb."  Marshal 
if  he  had  the  return.  The  Marshal  handed  him  the  following  papers, 
which  the  clerk  read  aloud  : 

The  United  States  of  America,.     ) 
.    District  op  Maryland,  t'>-wit  : ) 

To  the  Marshal  of  the  Maryland  District,   Greeting  ; 

We  command  you  that  you  attach  the  body  of  Gen.  George  Cad- 
wallader, and  him  to  have  bef(n'e  the  Hon.  Roger  B.  T;iney,  Chief 
Justice  of  -tho  Supreme  Court  of  the  United  States,  on  Tuesday,  the 
28th  of  May,  18G1.  at  12  o'clock,  M.,  at  the  Circuit  C,)urt  Rooms  of 
the  United  States,  in  the  city  of  Baltimore,  to  answer  f>r  his  contempt 
by  him  committed  in  refusing  to  produce  the  body  of  John  Merryman 
of  Baltimore  county,  according  to  the  command  of  the  writ  oT  habeas 
corpus,  r(.!turnable  and  returned  before  the  said  Chief  Justice  this  27th 
day  of  May,  1861. 

Witness  the  Hontn-able  Roger  B.  Taney,  Chief  Justice  of  the  Su- 
preme Court,  the  first  Jilonday  in  December,  in  this  year  of  our  Lord, 
1861. 

Issued  27th  May,  1861.  THOMAS  SPICER,  Clerk. 

I  hereby  certify  to  the  Honorable  Roger  B.  Tano}'',  Chief  Justice  of 
the  Supreme  Court  of  the  United  States,  that  by  virtue  of  the  witliin 
writ  of  attachment  to  me  directed  on  the  27th  of  May,  1861,  I  pro- 
ceeded 0)1  the  28th  day  of  May,  1861,  to  Fort  McHenry,  for  the  pur- 
pose of  serving  the  said  writ  I  sent  in  my  name  at  the  outer  gate  ; 
the  messenger  returned  with  the  reply,  "that  there  was  no  answer  to 
my  card."     I,  therefore,  could  not  serve  the  writ  as  I  was  commanded. 

So  answers  WASHINGTON  BONIFaNT, 

United  States  Marshal  f#r  the  District  of  Maryland. 


MERRYMAN    HABEAS    COnPCS    CASE.  5 

Chief  Juslice  Taney  then  turned  to  Deputy  Marshal  Vance  and 
said  :  "Then  the  writ  is  not  answered  ?" 

Deputy  JJarshal  Vuiice — Tiicro  was  no  answer,  sir.  except  that 
"  there  was  no  reply  to  my  card."  I  was  not  permitted  to  enter  tlic  outer 
gate. 

Chief  Justice  Tanej- — Well,  you  should  state  that.  The  fact  does 
not  ai)/)ear  in  yojr  return. 

Mr.  Vance  amended  the  return  in  coHTpliance  with  the  sugg-estion, 
and,  .handing;  the  paper  to  the  Chief  Justice,  the  latter  proceeded  to 
read  from  a  manuscript  the  subjoined  remarks,  previously  saying  : 
"Gentlemen,  I  shall  feel  it  ni}'  duty  to  enforce  the  process  of  tlie 
Co'trt." 

I  ordered  the  attachment,  yesterday,  because,  upon  the  face  of 
the  return,  the  detention  of  the  prisoner  was  unlawful  upon  two 
g-rounds  ; 

1.  The  President,  under  the  Constitution  and  laws  of  the  United 
States,  cannot  suspend  the  privilcg'o  of  the  writ  of  habeas  corpus, 
nor  authorize  any  militar}' ofticer  to  do  so. 

2.  A  military  otiicer  has  no  right  to  arrest  and  detain  a  person, 
not  subject  to  the  rules  and  articles  of  war,  for  an  ofience  against  thq 
laws  of  the  United  States,  except  i]i  aid  of  the  judicial  authority,  and 
subject  to  its  control — and  if  tiie  party  is  arrested  by  the  military,  it 
is  the  duty  of  the  ofiicer 'to  deliver  him  over  immediately  to  civil  au- 
thorit}',  to  be  derdt  with  ticcording  to  law. 

1  forebore  3'esterday  to  state  orally  the  provisions  of  tfie  Constitui 
tion  of  the  United  States,  which  make  these  principles  the  fundamen- 
tal law  of  the  Union,  because  an  ora'l  statement  mig'iit  be  misuiid.-r- 
Ktood  in  some  portions  of  it,  and  1  shall  therefore  put  my  opinion  in 
writing,  and  file  it  in  tlie  olSce  of  the  Clerk  of  the  Circuit  Court  in 
the  course  of  this  week. 

After  reading  the  above,  the  Chief  Justice  orally  remarked  : 

In  relation  to  the  present  return,  it  is  proper  to  say  that  of  course 
the  Marshal  has  logall}^  the  power  to  summon  out  the  jiosse.  comitatus 
to' seize  ai.d  bring  into  court  the  party  named  in  the  attachment  :  but 
it  is  apparent  he  will  be  resisl(.>d  in  the  discharge  of  that  duty  by  a 
force  notoriously  superior  to  the  jyossce,  and  this  being  the  fiase,  such 
a  proceeding  can  I'csult  in  no  good,  and  is  useless.  I  will  not,  there- 
fore, require  the  Marshal  to  perform  this  duty.  If,  however.  General 
Cadwallader  were  before  me,  I  should  impose  on  him  the  punishment 
which  it  is  within  my  province  to  inflict,  that  of  fine  and  imprison- 
ment. I  shall  merely  say  to-day,  that  I  shall  i-educe  to  writing  the 
rf'asons  under  which  I  have  acted,  and  which  have  led  me  to  the  con- 
clusions expressed  in  my  opinion,  and  shall  report  them  with  these 
j)r()ceedings  to  the  President,  and  call  upon  him  to  perform  his  Con- 
stitutional duty — to  enforce  the  laws,  by  compelling  obc5.ienc'j  to  the 
civil  process. 


OPINION  OF  CHIEF  JUSTICE  TANEY. 

j^  I  Before  the  Chief  Justice  "f  tli« 

T      .  {'r  "  -;      Supreme  Court  of  the  United 

John  Meruymax.       i      o.\  ,  ,,.       i 

(     iStiites,  at  Chambers. 

The  application  in  this  case  for  a  writ  of  r.ahcas  corpus  is  made  to 
Jne  under  tlie  14th  section  of  the  Judiciary  Act  of  1789,  wliich  ren- 
ders effectual  for  the  citizen  the  Constitutional  privelege  of  the 
writ  of  habeas  corpus.  That  act  gives  to  the  courts  of  tlie  United 
States,  as  well  as  to  each  Justice  of  the  Supreme  Court,  and  to 
every  District  Judge,  power  to  grant  writs  of  habeas  corpus  for  the 
purpose  of  an  inquiry  into  the  cause  of  commitment.  The  petition 
was  presented  to- me  at  Washington  under  the  impression  that  I 
would  order  the  prisoner  to  be  brought  before  me  there,  but  as  he 
"was  confined  in  fort  McHenry,  at  the  city  of  Baltimore,  which  is  in 
my  circuit,  I  resolved  to  hear  it  in  the  latter  city,  as  obedience  to 
the  writ,  under  such  circumstances,  would  not  withdraw  General 
Cadwallader,  who  had  him  in  charge,  from  the  limits  of  his  military 
command. 

The  petition  presents  the  following  case  :  The  petitioner  resides 
in  Maryland,  in  Baltimore  county.  While  peaceably  in  his  own 
liouse,  with  his  family,  it  was,  at  two  o'clock  in  the  morning  of  the 
25th  of  May,  1861,  entered  by  an  armed  force,  professing  to  act  un- 
military  orders.  He  was  then  compelled  to  rise  from  his  bed,  taken 
into  custody,  and  conveyed  to  Fort  McHenry,  where  he  is  imprison- 
ed by  tlie  commanding  officer,  without  warrant  from  any  lawful 
authority. 

The  commander  of  tlie  fort.  Gen.  George  Cadwallader,  by  whom 
he  is  detained  in  confinement,  in  his  return  to  the  writ,  does  not  deny 
any  of  the  facts  alleged  in  the  petition.  He  states  that  the  pi"isoner 
was  arrested  by  order  of  Gen.  Keim,  of  Pennsylvania,  and  con- 
ducted as  a  prisoner  to  Fort  McHemy  by  his  order,  and  placed  in 
liis,  (Gen.  Gadwallader's)  custody,  to  be  there  detained  by  hioi  as  a 
prisoner. 

A  copy  of  the  w^arrant,  or  order,  under  which  the  prisoner  was  ar- 
rested, was  demanded  by  his  counsel,  and  refused.  And  it  is  nut 
alleged  in  the  return  that  any  specific  act  constituting  an  offence 
>against  the  laws  of  the  United  States,  has  been  charged  against  him 
■upon,  oath,  but  he  appears  to  have  been  arrested  upon  general  char- 
ges of  treason  and  rebellion,  witliout  proof,  and  without  giving  the 
names  of  the  witnesses,  or  specifying  the  acts,  which  inthejudg- 
'.nent  of  the  military  ofiicer,  cpnstituted  these  crimes.  And  having 
•he  prisoner  thus  in  custod}^  upon  these  vague  and  unsupported  accu- 
sations, he  refuses  to  obey  the  writ  oi  habeas  corpus,  upon  the  ground 
hat  he  is  duly  authorized  by  the  President  to  suspend  it. 

The  case,  then,  is  simply  this.  A  military  officer,  residing  in 
^enns^dvania,  issues  an  order  to  arrest  a  citizen  of  Maryland  upon 
ague  and  indefinite  charges,  without. any  proof,  so  far   as  appea"s, 


-KERRYMAN   HABEAS   CORPUS   CASE.  7 

A7ndcr  lliis  ovder  his  house  is  entered  in  the  nig'lit.:  he  is  seized  as  u 
jirisouor  and  conveyed  to  Fort  McHcnr^',  and  there  kept  in  close  con- 
lineraent.  And  when  a  habeas  ccAyiis  is  served  on  the  commanding- 
officer,  requiring  him  to  produce  the  prisoner  before  a  Justice  of  the 
Supreme  Court,  in  order  tliat  he  may  examine  into  the  legality  of  the 
imprisonment,  the  answer  of  the  officer  is,  that  he  is  authorized  by 
the  President  to  suspend  the  writ  of  habeas  corpus  at  his  discretion, 
jtnd,  in  the  exercise  of  that  discretion,  suspends  it  in  this  case,  and 
-ou  that  ground  refuses  obedience  to  the  writ. 

As  the  case  comes  before  me,  therefore,  I  understand  that  the 
President  not  only  claims  the  right  to  suspend  the  writ  of  habeas 
corpus  himself  at  his  discretion,  but  to  delegate  that  discretionary 
power  to  a  nrllitary  ofticer,  and  to  leave  it  to  him  to  determine  whether 
he  will  or  will  not  obc}' judicial  process  that  may  be  served  upon 
him. 

No  official  notice  has  been  given  to  the  courts  of  justice  or  to  the 
public,  by  proclamation  or  otherwise,  that  the  President  claimed 
tills  power  and  had  exercised  it  in  the  manner  stated  in  the  return. 
And  I  certainly  listened  to  it  with  some  surprise,  for  I  had  supposed 
it  to  be  one  of  those  points  of  constitutional  law,  upon  which  there 
was  no  difference  of  opinion,  and  that  it  was  admitted  on  all  hands 
that  the  privilege  of  the  writ  could  not  be  suspended  except  by  act 
of  Congress. 

AVhcn  the  conspiracy  of  which  Aaron  Burr  was  the  head  became 
80  formidable,  and  was  so  extensively  ramified,  us  to  justify,  in  Mr. 
Jefferson's  opinion,  the  suspension  of  the  writ,  he  claimed,  on  his 
})art,  no  power  to  suspend  it,  but  communicated  his  opinion  to  Con- 
gress, with  all  the  proofs  in  his  possession,  in  order  that  Congress 
might  exercise  its  discretion  upon  the  subject,  aiwi  determine  whether 
the  public  safet}-  required  it.  And  in  the  .debate  which  took  place 
upon  the  subject,  no  one  suggested  tliat  Mr.  Jefferson  might  exercise 
the  power  himself,  if,  in  Ids  opinion,  the  public  safety  demanded  it. 

Daviug,  therefore  regarded  the  question  as  too  plain  and  too  well 
settled  to  be  open  to  dispute,  if  the  commanding  officer  had  stated 
that  upon  his  own  responsibility,  and  in  the  exercise  of  his  own  dis- 
cretion, he  refused  obedience  to  the  writ,  I  should  have  contented 
myself  with  referring  to  the  clause  in  the  Constitution,  and  to  the 
construction  it  received  from  ever}'  jurist  and  statesman  of  that  day, 
when  the  case  of  Burr  .was  beforxj  them.  But  being  thus  officially 
notified  that  the  privilege  of  the  writ  has  been  suspended  under  the 
orders  and  b}'  the  aytliority  of  the  President,  and,  believing,  as  I  do, 
that  the  President  has  exercised  a  power  which  he  does  not  posesss 
under  the  £!onstitution,  a  proper  respect  for  the  high  office  he  fills, 
requires  uK^tcj^state  plainly  aud  fully  the  grounds  of  my  opinion,  in 
order  to  show  that  I  have  not  ventured  to  question  the  legality  of 
liis  act  without  a  careful  and  deliberate  examination  of  the  whole 
subject. 

This  clause  in  the  Constitution,  which  authorizes  the  suspension 
of  the  privilege  of  the  writ  of  Jiabeas  corpus,  is  in  the  9th  section  of 
:he  iirst  article. 

This  .ai'ticle  is  devoted  to  the  legislative  department  of  the  United 


S  OPINION    OF    CHIEF   JUSTICE    TAXEV    IN    THE 

States,  and  has  not  the  slij2;iitest  reference  to  the  Executive  depart- 
ment. It  be_i>-ins  by  providing  "tliat  all  legislative  powers  therein 
granted,  siiall  be  vested  in  a  Congress  of  the  United  States,  which 
shall  consist  of  a  Senate  and  House  of  Representatives."  And  after 
prescribing  the  numner  in  which  these  two  branches  of  the  legisla- 
tive department  shall  be  cliosen,  it  proceeds  to  enumerate  specifically 
the  legislalivg  powers  which  it  thereby  grants,  and  legislative  pow- 
ers which  it  expressly  prohibits,  and,  at  tiic  conclusion  of  this  speci- 
fication, a  clause  is  inserted,  giving  Congress  "the  power  .to  make  all 
laws  which  may  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States  or  in  any  department  or 
office  thereof." 

The  power  of  Icgislaton  granted  by  this  latter  clause  is  b}'-  its 
words  carefully  confined  to  the  specific  objects  before  enumerated. — 
But  as  this  limitation  was  unavoidably  scnnewhat  indefinite,  it  was 
deemed  neecssary  to  guard  more  effectually  certaiii  great  cardinal 
l)rinciples  essential  to  the  liberty  of  the  citi/.en,  and  to  the  rights  and 
(.'quality  of  the  States,  by  denying  to  Congress  in  express  terms,  any 
power  of  legislating  over  thein.  It  was  apprehended,  it  seeins,  that 
such  legislation  might  be  attempted  under  the  pretext  that  it  was 
}iecessary  and  proper  to  carry  into  execution  the  povv'crs  granted  ; 
and  it  was  determined  that  there  should  be  no  room  to  doubt,  where 
rights  of  such  vital  iuipoitance-  were  concerned,  and  accordingly, 
this  clause  is  immediately  followed  by  an  enumeration  of  certain 
subjects,  to  wli,ich  the  powers  of  legislation  shall  not  extend  ;•  and 
the  great  importance  which  the  framers  of  the  Constitution  attached 
to  the  privilege  of  the  Avrit  of  h'lheas  corpus  to  protect  the  liberty  of 
the  citizen,  is  proved  by  the  fact  tliat  its  suspension,  except  in  cases 
of  invasion  and  rebellion,  is  first  in  the  list  of  prohibited  powers — 
and  even  in  these  cases,  the  power  is  denied,  and  its  exercise  pro- 
hibited, unless  the  public  safety  shall  require  it.  It  is  true,  that  in 
il'C  cases  mentioned,  Congress  is  of  necessity  the  judge  of  whether 
1  ho  public  safety  does  or  does  not  require  it  ;  and  its  judgement  18 
conclusive.  But  the  intioduction  of  these  words  is  a  standing  ad- 
monition to  the  legislative  bod^'-  of  the  danger  of  suspending  it,  and 
of  the  extreme  caution  they  should  exercise  before  they  give  the 
(rovernment  of  the  United  States  such  i^ower  over  the  liberty  of  a 
citizen. 

It  is  the  2d  article  of  the  Constitution  that  provides  for  the  organ- 
ization of  the  Executive  Department,  and  enumerates  the  powers 
conferred  on  it,  and  prescribes  its  duties.  And  if  the  high  power 
over  the  liberty  of  thj  citizen  now  claimed,  wa-5  iutendwd  to  be  con- 
ferred oa  the  President,  it  vs'ould  undoubtedly  be  foui^  in  plain 
words  in  this  article.  But  tliere  is  not  a  word  in  it  that  can  furnisli 
the  slighest  ground  to  justify  tlie  exercise  of  this  power. 

'J'he  article  begins  by  declaring  that  tlie  E.iecutive  power  shall  bo 
vested  in  a  President  of  the  United  States  of  "l\merica,  to  hold  his 
f'flice  during  the  term  of  four  years — and  then  proceeds  to  prescribe 
I  he  mode  of  election,  and  to  specify,  in  precise  and  plain  words,  the 
powers  delegated  to  him  and  the  duties  imposed  upon  him.     And  tho 


MEKRVMAK    HABEAS    CORPrS    CAr.E.    '^  ^ 

filiort  term  for  Avliich  ho  is  elected,  and  the  nnvrow  limits  to  which 
Jiis  power  is  confined,  show  the  jealously  and  npproheusioJis  of  future 
flanger  whicii  the  i'raniera  of  the  Constitution  icit  in  relation  to  thut 
department  of  the  Government — and  liow  carefully  they  withheld 
from  it  jnany  of  the  powers  belong-ing*  to  the  Executive  branch  of 
ilie  English  (Joverninent,  -which  were  considered  as  dang-erous  to  the 
lilicrfy  of  the  subject — and  conferred  (and  that  in  clear  and  spocilic 
tin-ms)  tliose  powers  oidy  whicli  were  deemed  ^essential  to  secure  thtf 
successful  operation  of  the  Government.  *'^- 

lie  is  elected,  as  I  have  already  said,  for  the  brief  term  of  fou?" 
years,  and  is  made  personally  responsible,  by  impeachment,  for  mal- 
l't>asanco  in  ofiice.  Jb;  is  from  necessity  and  the  nature  of  his  duties, 
the  commander-in-chief  of  the  arniy  and  navy,  and  of  the  militia, 
when  called  into  actual  service.  But  no  appropriatioti  for  the  sup- 
jHirt  of  the  ^army  can  bo  made  by  Congress  for  a  longer  term  than 
iwo  years,  so  that  it  is  in  the  power  of  the  succeeding' House  of 
Representatives  to  withhold  the  appropriation  for  its  support,  and 
thus  disband  it,  if,  in  their  judgment,  (he  President  used,  or  designed 
to  use  it  for  improper  purposes.-  And  although  tiio  militia,  when  in 
actual  service,  are  under  his  command,  yet  the  appointment  of  the 
officers  is  reservq^l  to  the  States,  as  a  securit;^'  against  the  use  of  the 
military  power  for  purposes  dangerous  to  the  liberties  of  the  people 
or  the  rights  of  the  Slates. 

So,  too,  his  powers  in  ndation  to  the  civil  duties  and  authority 
noccssarily  conierred  on  him,  are  carefully  restricted,  as  well  as  thoso 
belonging  to  his  military  character.  He  cannot  appoint  the  ordinary 
officers  of  Government  nor  make  a  treaty  with  a  foreign  nation  ojp 
Indian  tribe  without  the  advice  and  consent  of  the  Senate,  and  can- 
not appoint  even  inferior  officers  unless  he  is  authorized  by  an  act  of 
('Ongress  to  do  so.  He  is  not  empowered  to  arrest  any  one  charged 
with  an  olfence  against  the  United  States,  and  whom  he  may,  from 
the  evidence  before  him,  believe  to  be  guilty — nor  can  he  authorize 
any  officer,  civil  or  military,  to  exercise  this  power  ;  for  the  5tii  arti- 
cle oi  the  amendments  to  the  Constitution  expressly  provides  that  no 
pprson  "  shall  be  dcin-ived  of  life,  liberty  or  property  witliou-t  dui) 
])rocess  of  law," — that  is,  judicial  process.  And  even  if  the  privilege 
of  the  writ  Oi  haheas  corpus  v,-i\^  suspended  by  act  of  Congress,  and  a 
party  not  subject  to  the  rules  and  articles  of  war  was  afterwards 
arrested  and  imprisoned  l)y  regular  judicial  process,  ho  could  not  bo 
detained  in  prison  or  brought  to  trial  before  a  military  tribunal,  for 
the  article  in  the  amendments  to  Constitution,  immediately  I'ollowiiig 
the  one  above  referred  to — that  is,  the  6th  article — provides  that  "  in 
all  criminal  pi'osecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  imparlial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  connnitted,  which  district  shall  have  been 
jirevionsly  ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation  ;  to  be  confronted  wiih  the  witnesses  against 
liira  ;  to  have  comj)uls(yi'y  process  for  obtaining  witnesses  in  his  favor, 
and  lo  have  the  assistance  of  counsel  for  his  defence." 

And  the  only  power,  therefore,  which  the  Presi.lent  possesses, 
where  the  "life,  liberty  or  property"  of  a  private  citizen  is  concerned, 


£»  OPISION    OF    CHIEF    JUSTICE    TANEY    IN    THE 

is  the  power  aiid  duty  presciibed  in  tlio  tliird  section  of  the  2d  ar(ii-!o, 
whicii  requires  "  that  lie  shall  take  care  that  the  laws  be  faithlully 
ixecuted."  He  is  not  authorized  to  execute  them  himself,  or  tlirougU 
u.L^ents  or  officers,  civil  or  military,  appointed  by  himself,  but  he  ist.. 
take  care  that  they  ,be  faithfully  carried  into  execution  as  they  are 
(,'xpounded  and  adjudged  by  the  co-ordinate  branch  of  the  Govern- 
ment, to  which  that  duty  is  assigned  b}'-  the  Oonstitutiou.  it  is  thus 
made  his  duty  to  come  in  aid  of  the  judicial  authority,  if  it  shall  be 
resisted  by  a  force  too  strong  to  be  overcome  without  the  assistance 
/.>f  the  Executive  arm.  Bui  iu  exercising  this  power,  he  acts  in  sub- 
ordinate to  judicial  authority',  assisting  it  to  execute  its  process  and 
ontbrce  its  judgments. 

With  such. provisions  in  the  Constitution,  expressed  in  language 
loo  clear  to  be  misunderstood  by  any  on«,  I  can  see  no  ground  what- 
ever for  Eupposing  that  the  President,  in  any  emergency  or  in  any 
state  of  tilings,  can  authorize  the  suspension  of  the  privilege  of  the 
v.-r\toi'  habeas  corpus,  or  arrest  a  citizen,  except  in  aid  of  the  judicial 
])ower.  He  certainly  does  not  faithfully  execute  the  laws  if  he  takes 
apon  himself  legislative  power  by  suspending  the  writ  of  habeas  cor- 
pus— and  the  judicial  power,  also,  by  arresting  and  imprisoning  a 
person  without  due  process  of  law.  'Mor  can  any  argument  be  drawn 
from  the  nature  of  sovereignty,  or  the  necessitiee  of  government  for 
self  defence  in  times  of  tumult  and  danger.  The  Government  of  the 
■  "Jnited  States  is  one  of  delegated  and  limited  powers.  It  derives  its 
•jxistence  and  authority  altogether  from  the  Constitution,  and  neither 
of  its  branches.  Executive,  Legislative  or  Judicial,  can  exercise  anj'- 
•d"  the  powers  of  government  beyond  those  specified  and  granted. 
For  the  10th  article  of  the  amendments  to  the  Constitution,  in  express 
terras,  provides  that  "the  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States  are  reserved  to 
the  States  respectively,  or  to  the  people." 

Indeed,  the  security  against  imprisonment  by  executive  authority, 
provided  for  in  the  fifth  article  of  the  amendments  to  the  Constitution, 
which  I  have  before  quoted,  is  nothing  more  than  a  copy  of  a  like 
))rovision  in  the  English  Constitution,  which  had  been  firmly  estab- 
lished before  the  Declaration  of  Independence. 

Blackstone,  in  his  Commentaries,  (1st  vol.,  131)  states  it  in  the 
following  words  : 

"To  make  imprisonment  lawful,  it  must  be  either  by  process  from 
the  Courts  of  Judicature  or  by  warrant  from  some  legal  officer  having 
authority  to  commit  to  prison."  And  the  people  of  the  United  Colo- 
nies, who  had  themselves  lived  under  its  protection  while  they  were 
British  subjects,  were  well  aware  of  the  necessit}'  of  this  safeguard 
Ibr  their  personal  liberty.  And  no  one  can  believe  that  in  framing 
a  government  intended  to  guard  still  more  efficiently  the  rights  and 
liberties  of  the  citizens  against  executive  encroachment  and  oppres- 
sion, they  would  have  conferred  on  the  President  a  power  which  the 
liistory  of  England  had  proved  to  be  dangerous  and  oppressive  in  the 
hands  of  the  Crown,  and  which  the  people  of  England  had  compelled 
it  to  surrender  after  a  long  and  obstinate  struggle  on  the  part  of  the 
jljnglish  Executive  to  usurp  and  retain  it. 


MF.nilYMAN    IIAHKAS    CORPUS    CAHf..  ill 

The  right  of  tl)e  subject  to  the  benefit  of  the  writ  of  habeas  corpii<. 
it  must  be  recollected,  was  one  of  the  great  points  in  coatrovorsy 
ill  England  between  arbitrary  government  and  free  institutions,  an<! 
must,  therefore,  have  strongly  attracted  the  attention  of  statesmen 
<!ngaged  in  framing  anew,  and,  as  they  supposed,  a  freer  government; 
than  the  one  which  they  had  thrown  otl"  by  the  revolution.  For,  from 
the  earliest  history  of  the  Common  Law,  if  the  person  was  innprisonc'l 
— no  matter  by  what  authorit}' — he  had  a  right  to  the  writ  oUiabca^ 
iorpws  to  bring  his  case  before  the  King's  Bench  ;  and  if  no  specifi«; 
Ajlfence  was  charged  against  him  in  the  warrant  of  commitment,  ho 
■was  entitled  to  be  forthwith  discharged  ;  and  if  an  ofience  was 
charged  which  wius  bailable  in  its  character,  the  cocrt  was  bound  to 
net  him  at  liberty  on  bail.  And  the  most  exciting  contests  between 
the  Grown  and  the  people  of  England  from  the  time  of  the  Magna 
('harta,  were  in  relation  to  the  privilege  cf  this  writ,  and  thej'  con- 
tinued until  the  passage  of  the  statute  of  Slst  Ciiarlcs  2d,  commonly 
;,known  as  the  great  Jmbnas  corpus  act.  This  statute  )>nt  an  end  to  the 
struggle,  and  finally  and  firmly  seor.red  the  liberty  of  the  subject 
from  the  usurpation  and  oppressioji  of  the  executive  branch  of  the 
(iovernment.  It  nevertheless  conferred  no  right  upon  the  subject, 
but  only  secured  aright  already  existing.  For,  although  the  right 
could  not  justly  be  denied,  there  was  often  no  effectual  remedy 
against  its  violation.  Until  the  statute  of  the  13th  William  8d,  the 
Judges  held  their  offices  at  the  pleasure  of  the  King,  and  the  influence 
which  he  exercised  over  timid,  time-serving  and  partisan  Judges 
«ftcn  induced  them,  upon  some  pretext  or  other  to  refuse  to  discharge 
ihe  party,  although  he  was  entitled  to  it  by  lav/,  or  delayed  their 
decisions  from  time  to  time,  so  as  to  prolong  the  imprisonment  of 
persons  who  were  obnoxous  to  the  King  for  their  political  opinions, 
or  had  incurred  his  resentment  in  any  other  way. 

The  great  and  ir.estimable  value  of  the  kaheas  ccrpus  act  of  the  31st 
<vbarles  2,  is  that  it  contains  provisions  which  compel  courts  and 
judges,  and  all  ])arties  concer;icd,  to  .perform  their  duties  promptly, 
in  the  manner  specified  in  the  statute. 

A  passage  in  13 hickf: tone's  Conimcntaries,  showing  the  ancient  state 
of  the  law  upon  this  subject,  and  the  abuses  which  were  practiced 
through  tlie  power  ai>d  infiuence  of  the  Crown,  and  a  short  extract 
from  Ilallam's  Constitutional  'History,  stating  the  circumstances 
which  gave  rise  to  the.  passage  of  this  statute,  explain  briefly,  but 
fully,  all  that  is  material  to  this  subject. 

Blackstone,  in  his  Commentaries  on  the  Laws  of  England,  3d  vol., 
133-134,  says  : 

"To  assert  an  absoiute  exemption  from  imprisonment  in  all  cases, 
is  inconsistent  with  every  id(>a  of  law  and  political  society,  and  in  thj 
,end  would  destroy  all  civil  liljcrty,  by  rendering  its  protection  impos- 
silile. 

"But  the  glory  of  the  English  law  consists   in  clearly  defining  th.c 

times,    the   causes,   and  th(!  extent,  when,  wherefore,  and  to  Avhat  df- 

gree  the  imjn-isonment  of  the  subject  may  be  lawful.     This  it  is  which 

'induces  the  absolute  necessity  of  expressing  upon  every  commitment 

he  reason  for  which  it  is  made,  that  the  court  upon  a  habca>^  c6'?-j>»o: 


12  OPINION    OF    CHIEF    JUSTICE    TAXEY    IN    THE 

may  examine  into  its  validity,  and  according^  to  the  circumstances  of 
the  case,  may  discharge,  admit  to  bail,  or  remand  the  prisoner. 

"And  yet  early  in  the  reign  of  Charles  I.,  the  Court  of  King's  Bench, 
relying  on  some  arbitrary  precedents  (and  those  perhaps  misunder- 
stood,) determined  that  they  would  not,  upon  a  habeas  co7'pus,  either 
bail  or  deliver  a  prisoner,  though  committ(Kl  without  any  cause  as- 
signed, in  case  he  was  committed  by  the  b])ecial  command  of  the. 
King  or  by  the  Lords  of  the  Privy  Council.  This  drew  on  a  Parlia- 
mentary inquiry,  and  produced  the  Petition  of  Bights — 3  Chas.  I — 
which  recites  this  illegal  judgment  and  enacts  that  no  freeman  here- 
after shall  be  so  imprisoned  or  detained.  But  when  in  the  following 
year  Mr.  Selden  and  others  Avere  committed  V)y  the  Lords  of  the 
Council  in  pursuance  of  his  Majes'ty's  special  command,  under  a  gen- 
oral  charge  of  'notable  contempts,  and  stirring  up  sedition  against 
(ho  King  and  the  Government,'  the  judges  delayed  for  two  terms 
(including  also  the  long  vacation,)  to  deliver  an  opinion  how  far  such 
a  charge  was  bailable.  And  when  at  lonp:th  they  agreed  that  it  was, 
they  ai^nexed  a  condition  of  finding  sureties  for  their  good  behavior, 
which  still  protracted  their  imprisonment,  the  Chief  Justice,  Sir  Nich- 
olas Hyde,  at  the  same  time  declaring  that  '  if  they  Avere  again  re- 
manded for  that  cause  perhaps  the  court  would  jiot  grant  a  habeas 
corpus,  being  already  acquainted  with  the  cause  of  the  imprisonment.' 
i>ut  this  Vi'as  heard  with  indignation  and  astonishment  by  every  law- 
yer present,  according  to  Mr.  Selden's  own  account  of  the  matter, 
whose  resentment  was  not  cooled  at  the  distance  of  four-and-twenty 
years." 

It  is  worthy  of  remark  that  the  offences  charged  against  the  priso- 
nev  in  this  case,  and  relied  on  as  a  justification  for  his  arrest  and  im- 
prisonment, in  their  nature  and  character,  and  in  the  loose  and  vague 
manner  in  which  they  are  stated,  bear  a  striking  resemblance  to  those 
assigned  in  the  warrant  Jbr  the  arrest  of  Mr.  iSelden.  And  yet,  even 
at  tliat  day,  the  warrant  was  regarded  as  such  a  flagrant  violation  of 
the  rights  of  the  subject,  that  the  delay,  of  the  time-serving  judges  to 
MCt  him  at  liberty  upon  the  habeas  corpus  issued  in  his  behalf,  excited 
the  universal  indignation  of  the  bar.  The  extract  from  Hallam's 
< 'onstitutional  History  is  equally  impressive  and  equally  in  point.  It 
irf  in  vol.  4,  p.  14  : 

"It  is  a  very  com^mon  mistake,  and  not  only  among  foreigners,  but 
man}'  from  whom  some  knoAvlcdge  of  our  constitutional  laws  might 
he  expected,  to  suppose  that  this  statute  of  Charles  II.  enlarged  in  a 
great  degree  our  liberties,  and  forms  a  sort  of  epoch  in  their  history, 
ikit  though  a  very  beneficial  enactment,  and  eminently  remedial  in 
niany  cases  of  illegal  imjjrisonmcnt,  it  introduced  no  ncAv  principle, 
i!or  conferred  any  right  upon  the  subject.  From  {he  earliest  records 
ui' the  English  law,  no  freeman  could  be  detained  in  prison,  except 
iil^m  a  criminal  charge,  or  conviction,  or  for  a  civil  debt.  In  the 
fnrmer  case  it  was  alv.'-a.ys  in  his  power  to  demand  of  the  Court  of 
King'^  Bench  a  writ  of  habeas  corpus  nd  subjiciendum  directed  to  the 
p(?r.so-i  detaining  him  in  custody,  by  which  he  was  enjoined  to  bring 
iij>  the  body  of  the  prisoner  with  the  warrant  of  conunitment,  that 
Hie  court  might  judge  of  its  sufucicnry,  and  remand  the  party,  admit 


MERRYMAX    HABEAS    CORPUS    CASK.  IH 

him  to  bail,  or  discharg'e  him  according  to  the  nature  of  the  charg-o. 
Tills  writ  issued  of  riyht,  and  coukl  not  be  refused  by  the  court.  It 
was  not  to  bestow  an  imnumity  from  arbitrary  im])risonment,  whicli 
is  abu!idantly  provided  for  in  Mag-na  Charta,  (if  indeed  it  were  not 
more  ancient,)  tliat  tlie  statute  of  Ciiarles  II.  was  enacted,  bnt  to  cut 
oflf  the  abuses  by  whicli  the  g'overnnient's  hist  of  power,  and  the  ser- 
vile subtlety  of  Crown  lawyers  had  impaired  so  fundanic;ital  a  iirivi- 
lege." 

While  the  value  set  upon  this  writ  in  Eng'land  has  been  so  ^'>nrcat 
that  the  removal  of  the  abuses  which  embarrassed  its  enjoyment  have 
been  lotjkcd  upon  as  almost  a  new  g-rant  of  liberty  to  the  subject,  it 
is  not  to  be  wondered  that  the  continuance  of  the  writ  thus  made 
elFective  should  have  been  the  object  of  the  most  jealous  care.  Ac- 
cordingly, no  ])ower  in  England  short  of  that  of  Parliament  can  sus- 
pend or  authorize  the  suspension  of  the  writ  of  JiabmHcorj^tis.  I  quote 
again  from  Blackstone  (1  Comm.  lo()) :  "But  the  happiness  of  our 
Constitution  is,  that  it  is  not  left  to  the  executive  power  to  determine 
when  the  danger  of  the  state  is  so  great  as  to  render  this  nieasuiH! 
inexpedient.  It  is  the  Parliament  only,  or  legislative  power,  that 
whenever  it  sees  proper,  can  authorize  the  Cro^t^n  by  suspending  the 
habeas. vorpit>t  for  a  short  and  limited  time,  to  imprison  susp(»cted  per- 
sons without  giving  any  reason  for  so  doing."  And  if  the  President 
of  the  United  ^^tates  may  suspend  tlie  writ,  tlM;n  the  Constitution  of 
the  United  States  has  conferred  upon  him  more  i;egal  and  absolute 
))ower  over  the  liberty  of  the  citizen  than  the  people  of  England  have 
thought  it  safe  to  entrust  to  the  Crown — a  poAver  Avhich  the  Queen  of 
England  cannot  exercise  at  this  day,  and  v/hich  could  not  have  bee:i 
lawfully  exerciscd*by  the  Sovereign  even  in  the  reign  of  Charles  the 
First. 

But  I  am  not  left  to  form  my  judgment  upon  this  groat  question, 
from  analogies  between  the  Englisli  Government  and  our  owv,  or  the 
commentaries  of  English  jurists,  or  the  decisions  of  English  courts, 
although  upon  this  subjc^ct  they  are  entitled  to  the  highest  respect, 
and  are  justly  regarded  and  received  as  authoritative  by  our-Courts 
of  Justice.  To  guide  me  to  a  right  conclusion,  I  have  the  commenta- 
ries on  the  Constitution  of  the  United  States  of  the  late  Mr.  Justice 
Story,  not  only  one?  of  the  most  eminent  jurists  of  the  age,  but  for  a 
long  time  one  of  the  brightest  ornaments  of  the  Supreme  Court  of  the 
United  States,  and  also  the  clear  and  authoritative  decision  of  that 
Court  itself,  given  more  than  half  a  century  since,  and  conclusively 
establishing  t!ie  jirinciples  I  have  above  stated. 

Mr.  Justice  Story,  speaking  in  his  Commentaries  of  the  habeas  cor- 
puii  clause  in  the  Constitution,  says  : 

"It  is  obvious  that  (;ases  of  a  peculiar  emergency  may  arise  which 
may  justify,  nay,  even  require,  the  temporary  suspension  of  any  right 
to  the  writ.  But  as  it  has  frequently  happened  in  foreign  countries, 
and  even  in  England,  that  the  writ  has,  upon  various  pretexts  and 
occasions,  been  suspended,  whereby  persons  aj^prchended  upon  sus- 
})icion  have  suffered  a  long  imprisonment,  sometimes  from  design  and 
sometimes  because  they  were  forgotten,  the  right  to  suspend  it  is 
expressly  confined  to  cases  of  rebellion  or  invasion,  where  the  public 


14  OPINION    OF    CHIEF    JUSTICE   TANEY    IN    THE 

safety  may  require  it.  A  very  just  and  wholesome  restraint,  whicl 
cuts  down  at  a  blow  a  fruitful  means  of  oppression,  capable  of  bcin;." 
used  in  bad  times  to  the  worst  of  purposes,  llithevfo  no  suspensioi' 
of  the  writ  has  ever  been  authorized  by  Congivsi*  since  the  establish- 
laent  of  the  Constitution.  It  would  seem,-  as  the  pow'er  is  given  ti' 
(Congress  to  suspend  the  writ  of  hctbeafi  corjnis  in  cases  of  rebel lioi 
or  invasion,  that  the  right  to  judge  whether  the  exigency  had  arise)  . 
must  exclusively  belong  to  that  Ijody."  3  Story's  Com.  on  the  Con 
stitution,  section  1836. 

AndCliief  Justice  Marshall,  in  delivering  the  opinion  of  the  Supreme 
Court,  in  the  case  of  ex  jxirte  Bollman  and  SAvartwout,  uses  this  deci 
sive  language  in  4  Cranch,  95  : 

"It  may  be  worthy  of  remark,  that  this  act  (speaking  of  the  onr 
under  which  I  am  proceeding)  was  passed  by  the  lirst  Congress  o 
the  United  States,  sitting  under  a  Constitution  which  had  declarei. 
'that  the  privilege  of  the  writ  of  habeas  eorjnis  should  not  be  suspen- 
ded, unless,  when  in  cases  of  rebellion  or  invasion,  the  public  safetv 
might  require  it.'  Acting  under  the  immediate  influence  of  this  in- 
junction, tiRy  nuist  have  felt,  with  peculiar  force,  the  obligation  of 
providing  efficient  means  by  which  this  great  constitutional  privilege 
should  receive  life  and  activity  ;  for  if  tiie  means  be  not  in  existence, 
the  privilege  itself  would  be  lost,  although  no  law  for  its  suspension 
should  be  enacted.  Under  the  impression  of  this  obligation  they  give 
to  all  courts  the  power  of  awarding  writs  of  habeas  corpu^P 

And  again,  in  page  101  : 

"If  at  any  time  the  public  safety  should-  require  the  suspension  of 
the  powers  vested  by  this  act  in  the  courts  of  the  United  States,  it  is 
for  the  Legislature  to  say  so.  That  question  depends  on  political 
considerations,  on  which  the  Legislature  is  to  decide.  Until  the  Leg- 
islative will  be  expressed,  this  court  can  only  see  its  duty,  and  must 
obey  the  laws." 

I  can  add  nothing  to  these  clear  and  emphatic  words  of  my  great 
predecessor. 

But  the  documents  before  me  sho-vV-  that  the  military  authority  in 
this  case  lias  gone  far  bcj^ond  the  mere  suspension  of  the  privilege 
of  the  writ  of  habeas  cornms.  It  has,  by  force  of  arms,  thrust  aside 
the  judicial  authorities  and  officers  to  whom  the  Constitution  has  con-- 
fided  the  power  and  dnty  of  interpreting  and  administering  the  laws, 
and  substituted  a  military  government  in  its  place,  to  be  administered 
and  executed  by  military  officers.  For,  at  tlie  time  these  proceedings 
were  had  against  John  Merryman,  the  District  Judge  of  Maryland, 
the  commissioner  appointed  under  the  act  of  Congress — the  District 
Attorney  and  the  Marshal^ — all  resided  in  the  city  of  Baltimore,  a  few 
miles  only  from  tlie  home  of  the  prisoner.  Up  to  that  time,  there^had 
never  been  the  slightest  resistance  or  obstruction  to  the  process  of 
any  court  or  judicial  officer  of  the  United  States  in  Maryland,  exccpr, 
by  the  military  authority.  And'  if  a  military  officer,  or  any  other 
person,  had  reason  to  believe  that  the  prisoner  had  committed  any 
offence  against  the  laws  of  the  United  States,  it  was  his  duty  to  give- 
information  of  the  fact,  and  the  evidence  to  support  it,  to  the  Dis- 
trict'Attorney  ;  and  it  would  then  have  become  the  duty  of  that  offi.- 


MERKYJfAjT  3ASEAS   CORPUS    CASE.  lf» 

'"or  to  bring  the  matter  beffvre  the  District  JiKl<i:c  or  CommissioncT, 
and  if  there  avus  sufficient  legal  evidence  to  justiiy  his  arrest,  tlio 
•fudge  or  Commissioner  wonld  have  issued  his  Avarrant  to  the  Marshal 
ti>  arrest  him  ;  and  upon  the  hearing-  of  the  part}',  would  have  held 
him  to  bail,  or  committed  hin\  for  trial,  according  to  the  charactei" 
of  the  offence  as  it  appeared  in  the  testimony,  or  would  have  dit^^ 
cliarged  him  immediately,  if  there  was  not  sufiicient  evidence  to  sup-* 
port  the  accusation.  There  was  no  danger  of  any  obstruction  or  re- 
sistance to  the  action  of  the  civil  authorities,  and  therefore  no  reasoji. 
whatever  for  the  interposition  of  the  military.  And  yet,  under  the.s(^ 
circumstances,  a  military  officer  stationed  in  Pennsylvania,  without; 
giving  any  information  to  the  District  Attorney,  and  without  any  aji-. 
plication  to  the  judicial  authorities,  assumes  to  himself  the  judicial 
))ower  in  the  District  of  Maryland,  undertakes  to  decide  what  consti-^ 
tutes  the  crime  of  treason  or  rebellion,  what  evidence  (if,  indeed  h<> 
rc(|uired  any)  is  sufficient  to  support  the  accusation  an  !  justify  thd 
commitment,  and  commits  the  party,  without  having  a  hearing  even 
before  himself,  to  close  custody  in  a  sti'ongly  garriso;icd  fort,  to  be 
there  JK-dd,  it  would  seem,  during  tlie  pleasure  of  those  Avho  commit- 
ted him. 

The  Constitution  provides,  as  I  have  before  said,  tliat  "no  persoi' 
shall  be  deprived  of  life,  liberty  or  property,  without  due  process  o' 
law."  It  declares  that  "the  right  of  the  peopl^  to  be  secure  in  theii 
persons,  houses,  papers  and  etVects,  against  unreasonable  searches 
and  seis^ures,  shall  not  be  violated,  and  no  warrant  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  person  and  thing-s  to  bd 
seized."  It  provides  that  the  party  accused,  shall  be  entitled  to  ;i» 
speedy  trial,  in  a  court  of  justice. 

And  these  great  and  fundamental  laws,  which  Congress  itself  could 
not  suspend,  have  been  disregarded  an<l  suspended,  like  the  writ  of 
habeas  corpm,  by  a  military  order,  supported  hy  force  of  arms.  Such 
is  the  case  now  before  me,  and  I  can  only  say  that,  if  the  authority 
which  the  Constitutiun  has  confided  to  the  judiciary  department  and 
judiciary  officers,  may  thus,  upon  any  pretext,  or  luider  any  circum- 
stances, be  usurped  by  the  military  power  at  its  discretion,  the  peo- 
ple of  the  United  States  are  no  longer  living  under  a'  government  of 
laws,  but  every  citizen  holds  life,  liberty  and  property,  at  the  will  aniJ 
pleasure  of  the  army  officer  in  whose  military  district  he  may  happen 
to  be  found. 

In  such  a  case,  my  duty  was  too  plain  to  be  mistaken.  I  have  ex- 
ercised all  the  pOAver  which  the  Constitution  and  laAvs  confer  on  me, 
but  that  power  has  l>ecn  resisted  by  a  force  too  strong  for  me  to 
overcome.  It  is  possible  that  the  officer  Avho  has  incurred  this  graA-e 
responsibility,  may  have  misunderstood  his  instructions,  and  exceeded 
the  authority  intended  to  be  gi\'en  him.  I  shall,  therefore,  order  all 
the  proceedings  in  this  case,  with  my  opinion,  to  be  filed  and  recorded, 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  Maryland, 
and  direct  the  Clerk  to  transmit  a  copy,  under  seal,  to  the  President 
of  the  United  States.  It  Avill  th'Mi  remain  for  that  high  officer,  in. 
fulfilment  of  his  constitutional  obligation,  to  "take  care  that  the  law.H- 


16  mi:kry.\!a"S"  habeas  corpus  cask. 

W.  fiiithfully  executed,"  to  determine  what  measures  lie  will  take  to 
cause  the  eivil  process  of  the  United  States  to  be  respected  and  en- 

;;•;■._•  .1. 

U.  15.  TANEY. 

Chief'  J'udi'X  uf  tJw  Supreme  Court  of  the  ZMifcd  S:.'fr,^. 


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